State Consumer Disputes Redressal Commission
K.V.Thomas, vs The Manager, on 26 April, 2010
Daily Order
First Appeal No. 48/2006
(Arisen out of order dated in Case No. of District )
1. K.V.Thomas
Kothamangalam
....Appellant
Versus
1. The Manager,Oriental Insurance Co Ltd
Kothamangalam
....Respondent
1. The Manager,Oriental Insurance Co Ltd
Kothamangalam
....Respondent
BEFORE :
Sri.M.V.VISWANATHAN
, PRESIDING MEMBER
SRI.M.K.ABDULLA SONA , Member PRESENT:
None for the Appellant None for the Respondent *JUDGEMENT/ORDER KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO: 48/2006 JUDGMENT DATED: 26..04..2010.
PRESENT
SRI. M.V. VISWANATHAN :JUDICIAL MEMBER
SRI.M.K. ABDULLA SONA : MEMBER
K.V.Thomas,
Kudiyat House,
Kuthukuzhy.P.O, : APPELLANT
Kothamangalam.
(By Adv:Sri.Tom Joseph)
Vs.
The Manager,
M/s Oriental Insurance Co. Ltd.,
Branch Office, : RESPONDENT
Church View Junction,
Kothamangalam.
(By Adv:Sri.A.R.George)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
The above appeal is directed against the order dated: 25th August 2005 passed by CDRF Ernakulam in OP:181/05. The complaint therein was preferred alleging deficiency of service on the part of the opposite party/insurance company in repudiating the insurance claim made by the complainant with respect to the insured vehicle which was damaged in an accident. The damage claim was repudiated by the opposite party on the ground that the driver of the vehicle was not having the badge or endorsement to drive a transport vehicle. The opposite party entered appearance and filed written version justifying their action in repudiating the insurance claim because of the violation of the policy condition.
2. Before the Forum below, the complainant was examined as PW1 and Exts.A1 to A3 documents on the side of the complainant and Exts.B1 to B4 documents on the side of the opposite party/insurance company. On an appreciation of the evidence, the Forum below passed the impugned order dismissing the complaint. Hence the present appeal.
3. We heard both sides. The appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on the decision rendered by the Hon'ble Supreme Court in Ashok Gangadhar Maratha Vs. Oriental Insurance Company Ltd. reported in III (1999) CPJ 5 (SC) and argued for the position that there was an effective driving license to drive the Light Motor Vehicle and so there was no violation of the policy condition. On the other hand, the respondent/opposite party supported the impugned order passed by the Forum below. He relied on the decision rendered by the Hon'ble Supreme Court in New India Assurance Company Ltd Vs. Rahemansha Fakir and another reported in 2008 (3) TAC 20 (SC) and also the decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs. Vidhyadhar Maharukla and Others in Civil Appeal No:5721/08 and submitted that the driver was not having the effective license to drive a transport vehicle at the time of the accident and so the opposite party/insurance company is justified in repudiating the insurance claim.
4. The points that arise for consideration are:-
1. Whether there was violation of the policy condition as contended by the respondent/opposite party/insurance company?
2. Is there any legally sustainable ground to interfere with the impugned order dated: 25/8/2005 passed by CDRF, Ernakulam in OP:181/05?
5. Point Nos: 1 & 2:-
There is no dispute that the appellant/complainant was the owner and insured of the vehicle involved in the accident. Admittedly the insured vehicle was a taxi car. The policy was issued with respect to the insured vehicle by considering the same as a commercial vehicle. Thus, in effect the insured vehicle was a transport vehicle. But the appellant/complainant who was the driver of the said vehicle at the time of the accident was having only a license to drive Light Motor Vehicle. He was not having the badge or necessary endorsement authorizing him to drive a transport vehicle/commercial vehicle. So, appellant/complainant was not having a valid driving license as stipulated under section 3 of the Motor Vehicles Act. Thus, it can be seen that the appellant/complainant had driven the insured vehicle at the time of the accident without valid and effective driving license to drive a transport vehicle. Ext.B1 insurance policy issued would also show that the said vehicle was a passenger carrying commercial vehicle. This would make it clear that the insured vehicle was a transport vehicle. So, the driver was in need of a badge or necessary authorization to drive the insured vehicle. Thus, the appellant/complainant violated the terms of B1 insurance policy by driving the insured vehicle without a valid license. The opposite party/insurance company was perfectly justified in repudiating the insurance claim.
6. The decision relied on by the appellant/complainant in Ashok Gangadhar Maratha's case (supra) cannot be made applicable in the facts and circumstances of the present case. In the said reported case the vehicle involved was a non transport vehicle and so it was held that the person having license to drive Light Motor Vehicle is competent to drive the vehicle involved in that case. But in the present case on hand, the insured vehicle was a transport vehicle (passenger carrying commercial vehicle). There can be no doubt that the driver was in need of a badge or authorization to drive the transport vehicle. It has been held by the Hon'ble Supreme Court in National Insurance Company Ltd. Vs. Kusum Rai and Others reported in (2006) 4 SCC 250 that in the absence of an endorsement to drive a transport vehicle the insurance company can very well reject the insurance claim. It is also held by the Hon'ble Supreme Court in New India Assurance Company Ltd. Vs. Prabhulal that the clauses 14, 21, 28 and 47 of Sec.2 of the MV Act make it clear that if a vehicle is a LMV and it falls under the category of transport vehicle, the driver has to be endorsed under Sec.3 of the MV Act. In the subsequent decisions (supra) relied on by the respondent/opposite party would also make it abundantly clear that to drive a transport vehicle badge or endorsement in the driving license is required. The Forum below has rightly held that the appellant/complainant is not entitled to get the insurance claim because of the violation of the policy condition. So, the impugned order passed by the Forum below is to be upheld. Hence we do so. These points are answered accordingly.
In the result the appeal is dismissed. The impugned order passed by the Forum below is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN :JUDICIAL MEMBER VL.
M.K. ABDULLA SONA: MEMBER Pronounced Dated the 26 April 2010 [ Sri.M.V.VISWANATHAN] PRESIDING MEMBER [ SRI.M.K.ABDULLA SONA] Member